case study: kulbhushan jadhav


In april 2017, Indian citizen Kulbhushan Jadhav was charged with the allegations of involvement in terrorism and espionage activities and consequently was sentenced to death by a Pakistani military court. India challenged the sentence and approached the International court of justice on the claim of revival against breach by Pakistan and denying consular access as provided by the Vienna convention to Indian citizen Kulbhushan Jadhav. To which after years of battle in the year 2019, International court of justice (ICJ) ruled in the favour of India and directed the country Pakistan to firstly, reconsider the sentence effectively and secondly, grant consular access without any delays to India in the meanwhile.

Jadhav was sentenced by a military court of Pakistan, which had stricter partial laws and no express provisions for the accused to seek justice against the conviction breaking which ICJ asked the country to provide for a forum of appeal against such convictions to implement the equal justice machinery and have the other party’s version heard, the element of which can also be observed in renowned latin maxim “Audi alteram partem”.

Distinct to the remedy of review in domestic jurisdiction, the remedy of Reconsideration and effective review stands to be more of a directorial phrase internationally which is not codified but holds conferring powers. The remedy of Reconsideration and effective review in the case of Kulbhushan Jadhav was used for three major reasons;
✓ To provide consular access to India;
✓ As an approval to strengthen and place his defence with the help from his country, on humanitarian and settled equal justice grounds and to eradicate chances of partiality.
✓ For the disclosure of procedure followed by the country Pakistan in the listed case, inclusive of charges, evidences, grounds and reasons for subsequent steps, which remained non transparent as Pakistan never intensely clarified anything.

Following which pakistan was also ordered to disclose the situations in which Kulbhushan jadhav’s confession was recorded by the military court to activate successfully the inherent right of defence of Jadhav. The court (ICJ) stated strictly that before convicting any Individual the right to be heard must be provided irrespective of the forum or court pronouncing the sentence of conviction or death.

Following the controversy of the case of Kulbhushan Jadhav, the Vienna convention and its importance also received highlights. The Vienna convention dealing with the consular access and relations is basically an international treaty with a binding force over Independent countries to act in a particular way and maintain the prospected relationships internationally without infringing the rights of Individuals hailing inter states and representing the countries in a way.
The rights so listed are upheld by several persons. One of which is a consul (who although is not a diplomat in status), but is a representative of a foreign country in a host state, who works for the interests of his countrymen and procedurally backs the defence mechanism.
While the treaty entirely contains around 79 articles. The Law mainly dealing with the topic of detainment and providing of consular access/ Communication rights as specified in Vienna convention is;
• Article 5, Vienna convention- Consular access treaty- The said provision lists thirteen functions of a consul, including “protecting in the receiving State the interests of the sending State and of its nationals, both individuals and bodies corporate, within the limits permitted by international law” and “furthering the development of commercial, economic, cultural and scientific relations between the sending State and the receiving State.”
• Article 23, Vienna convention- Consular access treaty- Provides that the host nation may at any time and for any reason declare a particular member of the consular staff to be persona non grata, and the sending state must recall this person within a reasonable period of time, or otherwise this person may lose their consular immunity.
• Article 31, Vienna convention- Consular access treaty- Provides that the consular premises are inviolable (i.e., the host nation may not enter the consular premises, and must protect the premises from intrusion or damage).
• Article 35, Vienna convention- Consular access treaty- Provides that freedom of communication between the consul and their home country must be preserved, that consular bags “shall be neither opened nor detained”; and that a consular courier must never be detained.
• Article 36, Vienna convention- Consular access treaty-  communications between consular officers and nationals of the sending state. The Convention provides that “consular officers shall be free to communicate with nationals of the sending State and to have access to them.” Foreign nationals who are arrested or detained be given notice “without delay” of their right to have their embassy or consulate notified of that arrest, and “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.”
• Article 37, Vienna convention- Consular access treaty-  Provides for Communicative notification in regards with death of foreign national and that with the host country must “without delay” notify consular officers of the sending state if one of the sending state’s nationals dies or has a guardian or trustee appointed over him. The article also provides that consular officers must be informed “without delay” if a vessel with the sending state’s nationality is wrecked or runs aground “in the territorial sea or internal waters of the receiving State, or if an aircraft registered in the sending State suffers an accident on the territory of the receiving State.”
• Article 40, Vienna convention- Consular access treaty- “The receiving State shall treat consular officers with due respect and shall take all appropriate steps to prevent any attack on their person, freedom or dignity.”

Articles 58-68 as residuary articles further deal with honorary consular officers and their powers and functions.

Aishwarya Says:

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